Director of Public Prosecutions v Moon
[2014] VCC 390
•17 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00961
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT JOHN MOON |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea :17 March 2014 | |
DATE OF SENTENCE: | Sentence 17 March 2014 | |
CASE MAY BE CITED AS: | DPP v MOON | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 390 | |
REASONS FOR SENTENCE
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Catchwords: Attempted robbery, theft, Attempted armed robbery, Two separate victims
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Mr S Payne | VLA |
HIS HONOUR:
1 Robert John Moon, you have pleaded guilty to one charge of attempted robbery, one charge of theft and one charge of attempted armed robbery and have admitted prior convictions. Attempted robbery and theft are punishable by a maximum term of 10 years imprisonment, attempted armed robbery by a 20 year maximum term of imprisonment.
2 The prosecutor in this matter, Ms Churchill, opened this matter to the Court in accordance with Exhibit A, the written summary of prosecution opening dated 11 March 2014. As your counsel Mr Payne told me it was an agreed statement of the facts, so I see no need to fully restate the facts in my reasons. I will incorporate Exhibit A into my sentencing remarks. As can be seen from the summary this offending occurred in broad daylight. In broad daylight you have accosted two young men as they separately made their way home from work in the mid afternoon in Rosebud West on 10 October 2012. The first is the 16 year old victim who was on his way home from his job at Subway. So not even a man. A youth. You stepped in front of him and inquired of his headphones and grabbed at them. You demanded they be given to you and started to get angry yelling at the boy and swearing at him threateningly. You obviously were after a phone for when you saw the iPod you said "I don’t want that shit". This was the attempted robbery. You told him a moment later as you had him up against the fence about what you were prepared to do to get your hands on a phone. Whilst you were monstering this youth and pressing him up against a fence saying what you would do to get your hands on a phone, at that point the second victim had the misfortunate to be walking along the same street. You simply left the first victim and approached the second, in really a seamless transition from one serious offence to another.
3 You demanded of this second victim, this is a 20 year old male, that he show you his phone and then said ‘give it to me’. You told him you had a machete under your clothing and told him you’d punch him to the face and knock him out. You snatched the phone away from him. This is charged as a theft which is unusual, it seems to me, given the agreed summary that I am asked to sentence on the basis of, but the fact is that is what you have pleaded guilty to is theft, not robbery, so I will sentence you for theft of that phone and not for robbery of your victim in relation to it. Having stolen his phone in this way, you then searched amongst his belongings, including his backpack, and found a Stanley knife that he had, a legitimate reason for having in his possession. Again it was quite seamless, having found it you then used it. You then held it to his neck whilst searching his pockets and possessions in broad daylight in a public place. The victim told you he didn’t have his wallet and you then desisted and told him to leave. This was the attempted armed robbery. So this offending was undoubtedly frightening offending committed by you upon two quite separate separate victims in broad daylight, in a public place.
You were arrested on 26 October 2012 when one of your victims happened to see you when being driven in a car with his father. The police were called and attended. You were interviewed by the police. You cooperated with the police insofar as you permitted them to search your premises, but you said you could not remember committing these offences and went on to say really that they are not the sort of offences you would commit, you are not a person who stood over people. Well you did on this day.
Victim impact statement
One of your victims made a victim impact statement which was marked as Exhibit B and read aloud on the plea. So again, I do not think there is any great need for me to incorporate and go in to the full details of that impact statement. None of the contents of that impact statement is in any way surprising. This was frightening offending and has clearly had an impact on that victim. How could it not? He was a young man, just going about his daily activities, and he met you. He suffered a significant financial loss as is plain. He has had his belongings taken. Your conduct has driven home to your victim, at his young age, the dangers that lurk in public places even in broad daylight. He has changed his behaviour as a result of yours. The world is not as safe as he thought it was. He feels this way because of you Mr Moon, you a total stranger who held a blade up against his neck in a public place on the day in question.
OFFENDER: I held nothing against no one's neck.
HIS HONOUR: I am sorry?
OFFENDER: I did not hold anything against anyone's neck.
HIS HONOUR: The other younger victim was aware of his rights but has chosen not to make a victim impact statement.
OFFENDER: I never held him up against the fence.
HIS HONOUR: You might want to speak very swiftly and briefly with your client, Mr Payne. Go down and speak to him please. Again though, whatever you might think, it is clear that this was frightening offending. I take into account the impact of your crimes. These were serious crimes committed by you, committed in a public place.
Submissions In mitigation
4 Your counsel Mr Payne raised a number of matters in mitigation. He relied upon:
· Your guilty plea, co-operation with police and the relatively early stage of the plea.
· The presence of a level of remorse and a developing insight into the offending.
· He relied upon the reports of Dr O’Meara (Hutchens), the diagnosis of an ABI but specifically conceded that the various matters of principle from the case of Verdins v R had no application in this case. However the reports were still relevant in a non-Verdins way.
· He took me to your very disadvantaged and troubled background as leading to a reduction in culpability.
· He argued you were still a relatively young man who had used his time very wisely in custody with some realistic or reasonable prospects of rehabilitation.
· You were a very different man when employed and unaffected by alcohol or drugs and he pointed to the evidence of your brother in law in this regard.
· At the time of offending you were unemployed, idle, living in unfortunate accommodation with minimal possessions and no social network and abusing alcohol and drugs.
· As to the offending he argued it had all the hallmarks of opportunistic unsophisticated and unpremeditated conduct.
Your counsel conceded the seriousness of the offending and correctly submitted that the only disposition open to the Court was an immediate prison term but that strong regard should be had to the time you have already spent in custody on other matters and as significantly the gains made whilst undergoing that other sentence. He accepted that punishment, specific deterrence and general deterrence were still operative matters, as well as community, but that perhaps given the gains that had been made less weight should be placed on those sentencing purposes. More so given your personal background placed before me. Your counsel argued for a longer period on parole.
Crown Submissions
Ms Churchill on behalf of the Director of Public Prosecutions submitted that this was serious public offending upon two young victims, one of them obviously quite vulnerable. You had a relatively lengthy prior history, she argued. Whilst accepting the difficulty of your early background, she argued that the need for specific deterrence was plain enough.
Background
5 I turn to your background and again. I see no need to fully restate it because I accept the family background placed before me. I do not see the need to restate it. It is also set out in greater detail in the neuropsychologist’s reports, the reports of Dr O'Meara, especially the earlier report dated 21 January 2012, marked as Exhibit 2. It is also, though you will not be aware of this, referred in detail in your counsel’s written outline marked as Exhibit 1 on the plea. You were born in 22 Nov 1985 so are 28 years of age. I do not see the need to go chapter and verse through your personal background. It is very clear that you have had a background of some deprivation and instability in the formative years of your life with little by way of useful example from your natural parents. You missed that which so many of us take for granted. Stable family life with loving parents and good role models. The best start in life. None of that was in your early life. You had a mother with a raft of serious personal issues including drug and alcohol abuse and mental illness. She died when you were 13 but by that time the family had been broken up. You and your sister Belinda, who has been at court today and still is, had been removed from the family home when you were only 3 years old. You went to live in a permanent care arrangement with the Thielkings. You were split up from your other two siblings. You remained in that permanent care arrangement until you were 15 and they were decent well motivated people. Your counsel, in the course of the plea, expressed from you, at least, that you were a bit of a handful and too much ultimately for them to handle. Drugs and alcohol and offending reared their heads. Your conduct, I was told, strained and ultimately fractured that placement and in fact many others that were to follow. At one point you had some 19 placements in a little more than a year and a half at a stage when you were only 15 or 16 or so. It is totally unsurprising that amongst such disruption your schooling was also fragmented. It is totally unsurprising that amongst that disruption your schooling was fragmented. You struggled at school from very early on. You stopped about two days into Year 10 and until recently have not done anything to further your education. So again, without going in to the full details of it, it is clear that you, like every young person, or for that matter any person, have no choice over your early life or your family background. You did not choose the life that you had with your mother, or her having a cargo of other serious issues. These were your formative years. You had no say in those things and it is hardly any surprise that an early life such as that still has a deep impact on you, and others who have had that sort of background, decades later. I am prepared to find that your moral culpability is reduced by virtue of the most unfortunate background, especially in the early years, that you have had. I take that into account in your favour.
Criminal History
6 You have admitted a relatively lengthy criminal record. There have been a number of appearances. You have not been dealt with for this style of offending in the past, you have committed some crimes of violence, but far less serious than these, but you have committed serious enough offending to receive a number of terms of imprisonment. You have served a period on parole, breached a Community-based Order and committed these offences, for which I must pass sentence, whilst on a suspended sentence. Further you have committed serious offences including an aggravated burglary and attempted aggravated burglary subsequent to this offending, and upon being released on bail.
7 Clearly enough Courts have extended you opportunities. You have not taken them. It is equally clear from the material placed before me, and indeed your counsel urges this upon the court, that drugs and alcohol have been massive problems for you. The evidence of your brother in law I accept unreservedly, and it compels me to that view. You are, he would say, and no doubt your sister says as well in her reference, Exhibit 3, a very different man when you are not abusing substances, when you are not taking drugs, when you are not abusing alcohol. You are a very different man when you have something useful to do in your life, when you have a job. For that matter I should say that you are a good uncle and a good worker when not abusing alcohol or drugs. Conversely, when you abuse substances you are a totally changed man. You really must surely start to understand at your age that it is not a matter of having a little bit of alcohol, or small quantities of drugs, drugs are illegal full stop, alcohol is not. But you are the sort of person who cannot drink at all. You must not drink at all. Maybe you are coming closer to realising that fact than you have in the past but you surely must understand that some of the material placed before me speaks of an acquired brain injury, an acquired brain injury courtesy of the various abuses by you of substances over the years, including alcohol. So I take in to account, obviously, those matters and the evidence of your brother in law, speaking of the difference in your appearance when you are free of substances.
Guilty Plea
8 I turn to further matters in mitigation. Your plea of guilty has a strong utilitarian value. I reward you for pleading guilty. Your counsel correctly concedes that it was not at the earliest opportunity but there are plenty of pleas that are far later than yours. You indicated your intention of pleading guilty in October 2013, so well before the ultimate arraignment date. The matter then had to be negotiated out for the proper charges to be on the indictment. What is important is that you pleaded guilty. You did not make full admissions to this conduct, of course, but nor were you uncooperative with the police. You were prepared to have your premises searched and you were answering their questions. You said you could not remember the actual events. So you certainly were not starkly uncooperative with them. By your pleading guilty these witnesses, young witnesses, have been spared the experience of coming to court. That is important.
9 The community has been spared the time, cost and the effort associated with a contested hearing. You have taken responsibility for the offending. You have in these ways facilitated the course of justice. I will pass a significantly lesser penalty because of your guilty plea, your attitude to the police and level of co-operation and the stage at which your plea was entered.
Remorse
Remorse is a less clear cut position, I must say. You were interviewed by the police, as I have said, but did not make any direct admissions to this particular conduct. There were, though, in that interview, in the context of you denying any specific memory, your making plain your disquiet at this type of offending, saying it really was not in your character. Well you are sitting there now having pleaded guilty. Whilst not every guilty plea is indicative of remorse, I thinks yours likely is indicative of some level of remorse. You have had a significant time to reflect on your conduct. You have now admitted by your plea so I have no reason not to think that you do not have at least some remorse for these crimes and I take that in to account. You know that one of your victims was 16. You have heard the victim impact statement read out aloud. I am prepared to find that you are, to an extent, remorseful for these crimes.
Expert report
10 I turn to the reports of Dr O’Meara or Dr Hutchins, they are the same person of course, but again I see no need to descend to great analysis of the reports in these my reasons. You heard your counsel suggest how the reports were relied upon as well as how they were not relied upon. He made plain that the principles from the case of Verdins v R had no application here. That submission was I am sure correctly made. For your purposes, that case is a decision of the State’s highest court which speaks of the impact upon sentencing of conditions existing at the time of offending or sentence or both. That is very much a gross simplification of that case, I should say, but your counsel said it had no role to play in your sentencing. Your counsel relied upon the report of Dr O’Meara as identifying conditions and aspects of your personality relevant to sentence, specifically the likely existence of an acquired brain injury and the likely cause being your long history of alcohol and drug use. Your counsel made plain that none of the principles from Verdins v R had any application here, but that the reports were still highly relevant to sentence. So whilst for instance he said that there was no increased custodial burden was relied on here, indeed your counsel suggested you had thrived in custody, still regard should be had to the acquired brain injury and the other factors spoken of in the report. It spoke of the need for a structured release back into the community. It made more meritorious the abstinence for a large period in the current sentence and more significant still your taking an active role in education for the first time in over a decade. He did not suggest that there was any reduction of moral culpability to be derived in a Verdins way but that a perusal of the reports and your condition should mark out the size of the effort you have made to date in custody. I am prepared to accept the submissions made by your counsel based on these reports.
Rehabilitation
11 I turn now to your prospects of rehabilitation. You are still at least relatively speaking, a young man. You are though a long way removed from a youthful first offender. You are 28 turning 29 in November. Having read the materials and despite your criminal history, I sense that you do have a real and genuine interest in living a decent and normal life. A desire to do so. It has been well beyond you to this point in your life. I also sense in the interview a tiredness in the life you have led to date. There is no great joy for any person coming back and forth to courts and each time they came back being sent to prison. You need and will continue to need a deal of help to achieve that goal of living a normal life. I sense again that you are to a degree disappointed in yourself for letting yourself and your sister down and committing these frightening crimes on these two victims. You have been in custody from very shortly after being bailed on these offences. You were bailed on 7 November but were back in custody by the 17 November 2012. You have been held since. You had by then committed the subsequent crimes for which you were sentenced to 20 months with a non-parole period of 12 months on 26 February 2013. A pre-sentence declaration of 101 days was then made. You went to Fulham in March 2013. What is important is that you have, it would seem, buckled down and committed to a horticulture course through the East Gippsland TAFE whilst in custody and have been doing it for close to the last year. You have been working as part of the practical aspect of that course in the nursery at Fulham. I am told and I accept that it has given you some sense of a possible legitimate direction in your life upon your eventual release. There is some ambition, some enthusiasm and some hope. I hope that is true. In the context of the life you have led to date, it is a quite significant step and should not be sneered at by the court. Now of course the real test for you will come upon your ultimate release from custody. I am not going to write you off. You have unfortunately failed to take a number of opportunities offered by the Courts in the past. Since these offences for which I must pass sentence, you have spent a significant period in prison. That is something of a circuit breaker in this case. A significant period distanced from alcohol, and distanced at least from use of drugs and doing something useful in your life, returning to some form of education for the first time in over ten years. I am certainly not prepared to find that you have no prospects at all of rehabilitation. If you can grapple successfully with your addiction issues and actually address them there is still hope for you. It is a “big if” and your counsel concedes as much. You are still, though, in my judgment young enough to change your ways and live a useful life. That is an important consideration for the court. As I say I feel you want to change your life and that is a matter of some significance to the court. You will need to take such assistance as is offered to you and you may yet look back on this unhappy phase of your life in ten years and marvel at how you have overcome hurdles in your life to achieve a meaningful existence. I hope that is the position. I hope you can change for your own sake. If you cannot you are going to be coming back and forth to court and sent to prison for longer and longer periods in what will no doubt be very much a shortened life, in any event. If you can change then not only would it be good for you the community will also greatly benefit. If you slip back into your old ways and abuse alcohol and drugs your future is very bleak. I am then prepared to find that you have reasonable prospects of rehabilitation if you address these issues. Certainly because there has been some positive developments in the time that you have already been held under sentence I do not wish to snuff out any hope that exists in your life. I wish to recognise your efforts over the last year.
Sentencing considerations
12 I have taken into account the submissions made by your counsel as well as the exhibits placed before me.
13 Despite what some may say, sentencing is never an easy task. Those who say it is easy have never done it or have stopped doing it. There are very many matters which must be taken into account by a Court. I must take into account the maximum penalties. I must pay regard to current sentencing practices, as well as to a large range of factors including the impact of your crimes. I have dealt at some length with your prospects of rehabilitation and some of the positive moves that have taken place over the last 12 months, but your prospects of rehabilitation are one matter I must consider and I pay regard to them but they are not the only matter to focus upon. I must punish you justly and proportionately for your crimes. I must denounce your conduct and I do so. You should not need me to tell you, I do not think you do, that these were frightening crimes. They were committed upon totally innocent members of the public just going about their daily business. One of them was, as I recall it, just five years older than one of your daughter's children. Think about that. A kid of 16 just going about his business. Going home from probably a part time job and confronted by you, anything but a child in age, or appearance, or build. They did nothing to bring down these crimes upon themselves. They were just walking home in the afternoon after wrok. This was serious criminal conduct.
I still must pay some regard to specific deterrence. That is the need to deter or dissuade you from committing crimes such as these again. Courts have tried to deter you but with very limited success to date. I will try again. I must also send a message to others who might think of committing this type of prevalent offending. Your counsel says it is prevalent, highly prevalent offending, and he is right. This Court must seek to deter others from such conduct. General deterrence is still a significant sentencing purpose. So to must I consider the protection of the community from you. Again, that is a not insignificant purpose of sentencing despite the conclusions I reached as to the efforts that you are making.
Offence Gravity
14 I must pay regard to the gravity of the offence before the court. This was of course serious offending. Mr Payne acknowledges that and so do you. You acknowledged it in the interview when having descriptions placed before you of the suggested activity. But I accept that it was not premeditated and not planned in any way and arose opportunistically and spontaneously. These are not people that you have been tracking around, they are not people that you knew, you have come upon them. You did not come upon them with a weapon in your possession, the weapon has been picked up along the way and then pressed immediately in to action. Even had Mr Payne not made the submission, having read the statements of the two complainants, the two victims, there was a disturbed and disorganised and disjointed air to your conduct. The explanation for that no doubt lies in the extent of your intoxication on the day, but that is not put forward as a mitigatory matter at all and it is not. That does not mean it was any less frightening for your victims. However it was a not a greatly calculated or planned crime, that much is very clear to me.
15 Attempted armed robbery and attempted robbery are serious crimes but they can be committed in a vast array of differing ways. This was, relatively speaking at least, quite low level unplanned street level offending. Soft target crimes. Your counsel, as I have said, indicated that they were prevalent. I accept that submission. As I say, this classification or gradation of seriousness of offending that courts engage in is no comfort to the victim’s dealt with by you but simply a recognition by the courts that there are far more serious instances of attempted robbery and attempted armed robbery that come before the courts. There are also by the way less serious instances. Instances where there is no physical contact. Here the weapon was actually held to the neck of a victim in public. I pay regard to current sentencing practices. I have looked at the Judicial College of Victoria sentencing manual and considered, amongst other things of course, the list of recent cases, never losing sight, of course, of the fact that you are charged with attempted robbery and attempted armed robbery. I have looked at 32.14.2.5.1 (attempted armed robbery) and 32.14.3.4 (robbery), again, though, never losing sight of the fact that you have not been found guilty or pleaded guilty to the completed crime of robbery. You have pleaded guilty to the completed crime of theft and I again make plain that I will sentence you for that as an offence of theft. The weapon was not one carried to the crime at all. It was your victim's, found by you and then pressed immediately into action. But it was actually used. Held to his neck. All of it whilst on a reasonably significant suspended term of imprisonment.
Totality
16 Sending a person to prison is always a matter of last resort for a court. You have committed crimes of such seriousness as to leave the court with no choice at all as your counsel correctly conceded at the outset of the plea today. He was correct. I do pay regard to the principle of totality of sentence. I moderate the extent of cumulation as between the individual sentences imposed. There must be substantial cumulation though. Here there were two quite separate victims, separately confronted by you and offended against by you with varying individual impacts. I must recognise that fact.
17 I also pay regard to the significant period you have already been held in relation to the other matters. I cannot sentence you in a vacuum and without regard to the fact that you have been continuously held in custody since 17 November 2012. I take that period into account as it is a circumstance in your life. You have been held under sentence now for over 16 months. You were arrested on the other charges, after being bailed on these matters, on 17 November 2012 and have been under sentence since, courtesy of the actual sentence imposed in January 2013 and the pre-sentence detention declaration made. So that fact of your being held continuously since 17 November 2012 is a relevant factor and one I do pay strong regard to. Finally, Exhibit 3 makes plain that you would have been eligible for consideration of parole on 16 November 2013 but for the existence of the matters now before me. So it is clear that you have lost the possibility of that parole release as a result of this matter being outstanding. Though an argument might be had as to the appropriate word or phrase to describe that period, I treat it essentially in the way your counsel suggests I should, as dead time, and I take that period into account in my sentencing discretion. You have in the same way also lost the opportunity for concurrency of sentence that would have arisen had you been dealt with much earlier in relation to this matter. I take that into account as well. I have taken a last look at the overall effect of the sentences to be imposed upon you to guard against a crushing sentencing outcome.
18 Yes, would you stand up please?
Sentence
19 On the charge of attempted robbery, Charge 1, I convict and sentence you to 18 months' imprisonment.
20 On Charge 2, theft, you are convicted and sentenced to nine months' imprisonment.
21 On Charge 3, attempted armed robbery, I convict and sentence you to 2 and a half years' imprisonment. This is the base sentence.
Cumulation
I direct that 10 months of the sentence on Charge 1 and 2 months of the sentence imposed on Charge 2 are to be served cumulatively upon the base sentence of 2 and a half years.
22 This produces a total effective sentence of 42 months or 3 and a half years' imprisonment.
Non parole Period
23 I fix a period of 20 months during which you will not be eligible for release on parole.
24 This sentence is to be served concurrently with the sentence you are presently undergoing.
Section 18
25 I declare under s.18 of the Sentencing Act1991 the period of 13 days as pre-sentence detention in this matter and that it be reckoned as a period of imprisonment already served under this sentence. That declaration will be noted in the records of the Court.
Disposal order
Application is made for a disposal of items set out in the schedule, the box cutter, the baseball cap and a pair of blue lens sunglasses. It is not opposed. I make the order and now pronounce it. I am satisfied upon the conviction of you for attempted armed robbery that the property set out in the schedule is of negligible value and it was used, or intended to be used in or in connection with the commission of the offence. I order pursuant to the provisions of s.70(a)(1) of the Confiscation Act 1997 the forfeiture to the state of this property. I direct further that it be placed in to the custody of the chief commissioner of police and be held by him until 28 days from this date or the conclusion of any appeal proceeding where it may be tested and/or analysed and then destroyed. So I have signed that disposal order.
Section 6AAA
26 Had you been found guilty following a contested trial before a jury in relation to these matters, I would have sentenced you to a term of imprisonment of 5 years. I would have fixed a non-parole period of 3 and a half years. That statement is to be noted in the records of the court pursuant to section 6AAA of the Sentencing Act.
27 Let me just ask the parties, is there anything I have overlooked in terms of the need to make pronouncements?
28 MS CHURCHILL: No Your Honour.
29 HIS HONOUR: Do you each understand the terms of the sentence.
30 MR CHURCHILL: Yes Your Honour.
31 MR PAYNE: Yes Your Honour.
32 HIS HONOUR: So does that conclude the matter?
33 MR CHURCHILL: It does.
34 HIS HONOUR: Mr Payne, my inclination is to send those reports off to the Adult Parole Board, is there any reason why they shouldn't be sent?
35 MR PAYNE: No Your Honour.
36 HIS HONOUR: I'll have those sent, I suspect they would have been whether I'd asked or not, but I'd like to ask, and you're content for them to go.
37 MR PAYNE: Yes Your Honour.
38 HIS HONOUR: They're not going to hurt your client they're only going to assist him.
39 MR PAYNE: Of course, yes.
40 HIS HONOUR: All right, look, thank you for your assistance. Yes, Mr Moon can be released. Not released, removed I should say.
41 OFFENDER: I don't know how long I'm doing. Speak to me in English.
42 HIS HONOUR: You're going to go down and see your client, I assume?
43 MR PAYNE: I will, yes, I've already given that indication.
44 HIS HONOUR: Speak to him in English. You understand, anyway, the matters I've taken in to account in his favour. All right, I'm coming back on to the bench I think at four o'clock.
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